United States District Court, S.D. Florida
ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION
OR REHEARING REGARDING OMNIBUS ORDER ON MOTIONS FOR SUMMARY
G. COOKE UNITED STATES DISTRICT JUDGE.
Omnibus Order on Motions for Summary Judgment (ECF No. 95), I
held that because there was conflicting testimony as to
whether Defendant Zarco Stankovic learned about the South
Miami Hospital/University of Miami pathology reports before
signing the Release, summary judgment is inappropriate.
(Id. at 10). In the last paragraph of the Order, I
concluded that “[w]hether there was a misdiagnosis [of
Stankovic's medical condition], and whether there was a
fraudulent conspiracy to induce Stankovic to execute the
Release, are questions of fact for the jury.”
(Id. at 10-11).
Carnival Cruise Line (“Carnival”) now moves for
reconsideration or rehearing of the Order, asserting:
In denying Carnival's motion for summary judgment, this
Court seemed to be under the misapprehension that this case
is set for jury trial such that a jury should resolve the
factual issues, if any. Instead, this case is set for bench
trial back before this Court.
(ECF No. 100 at 1).
argues that because of this misapprehension, I analyzed the
parties' Motions for Summary Judgment (ECF Nos. 57, 73)
under the wrong standard. Carnival argues that because there
will be a bench trial in this case, I am “in an
enhanced position to draw inferences and resolve the
action” at the summary judgment stage without resort to
the expense of trial. Useden v. Acker, 947 F.2d
1563, 1572 (11th Cir. 1991).
that the Eleventh Circuit has indicated that a more relaxed
summary judgment standard applies to non-jury cases. See
Coats & Clark, Inc. v. Gary, 755 F.2d 1506, 1509
(11th Cir. 1985). In a non-jury setting “where there
are no issues of witness credibility, the Court may make
factual determinations and draw inferences at the summary
judgment stage based on the affidavits, depositions and other
evidence in the record, because ‘[a] trial on the
merits would reveal no additional data' nor ‘aid
the determination.'” Fla. Int'l Univ. Bd.
of Trustees v. Fla. Nat'l Univ., Inc., 830 F.3d
1242, 1251 (11th Cir. 2016) (quoting Nunez v. Superior
Oil Co., 572 F.2d 1119, 1123-24 (5th Cir. 1978)).
enforceability of the Release and the viability of
Stankovic's counterclaims turn on, inter alia,
whether anyone ever discussed with Stankovic the South Miami
Hospital/University of Miami pathology reports before he
signed the Release. Carnival asserts that “[t]here are
no additional witnesses to testify or information to be
gleaned regarding Dr. Giorgio and Stankovic's
consultations. . . . [T]he only inference that can be drawn
from this evidence is that Dr. Giorgio informed Stankovic of
his medical condition. There is no additional evidence on
this point, making a bench trial unnecessary.” (ECF No.
100). I disagree.
noted in the Order, there is conflicting testimony as to
whether Stankovic learned about the South Miami
Hospital/University of Miami pathology reports before signing
the Release. (ECF No. 95). Dr. Giorgio testified that
he did, Stankovic testified that he he did not. To resolve
that conflict, I necessarily will have to determine the
credibility of the witnesses. Cf. Fla. Int'l Univ.
Bd. of Trustees, 830 F.3d 1242 at 1251. It is well
settled in this Circuit that personal observation of
testimony is the sine qua non of determining witness
credibility. See, e.g., Tippitt v. Reliance
Standard Life Ins. Co., 276 F.App'x 912, 915
(11th Cir. 2008) (“Credibility
determinations are typically the province of the fact finder
because the fact finder personally observes the testimony . .
. .”); Carr v. Schofield, 364 F.3d 1246, 1265
(11th Cir. 2004) (“The determination of
credibility . . . is within the province of the district
court, which has the opportunity to observe and study the
witness.”). Ronel Corp. v. Anchor Lock of Fla.,
Inc., 325 F.2d 889, 890 (5 Cir. 1963) ([T ]he
credibility of those witnesses is crucial, and it would be
erroneous, by a summary judgment, to deprive either party of
a ‘live trial' at which the trial court could
observe the witnesses' demeanor in evaluating their
light of the above, I decline to reconsider my Order denying
Carnival's Motion for Summary Judgment.
therefore, ORDERED and ADJUDGED that Carnival's Motion
for Reconsideration or Rehearing Regarding Omnibus Order on
Motions for Summary Judgment (ECF No. 100) is DENIED.